ORDER : Shree Chandrashekhar, J. The sole appellant has challenged the judgment of his conviction under section 302/149 I.P.C and under section 201/34 I.P.C and the order of sentence, both dated 25.11.1993 passed by the learned Additional Judicial Commissioner-VII, Ranchi in S.T No.571 of 1989. 2. The appellant-Achru Lohar has been sentenced to undergo R.I for life for the offence punishable under section 302/149 I.P.C and R.I for six years for the offence punishable under section 201/34 I.P.C. 3. By an order dated dated 28.04.1994, the appellant has been granted bail by this Court. 4. On the basis of ferd-beyan of Adhir Singh recorded at about 11.15 p.m at Angara police station on 22.09.1988, a First Information Report being Angara P.S Case No.73 of 1988 under section 147,148,149, 341 and 323 I.P.C was registered against the accused appellant and seven unknown persons. The informant-Adhir Singh has stated that on 22.09.1988 at about 10.00 P.M he along with Bishwanath Singh Ghatwar were returning from the factory and when they reached near a bridge they found the accused-Achru Lohar and 7-8 unknown persons armed with danda, farsa, tangi etc. They surrounded them and by flashing the torch light the accused- Achru Lohar enquired about the co-worker Bishwanath Singh Ghatwar. When Bishwanath Singh Ghatwar asked him about the matter, the accused caught his arm and other persons started assaulting him with “fist and danda”. He was threatened by the accused persons to leave them and therefore he fled away from the place of occurrence. After registration of the First Information Report, the dead body of Bishwanath Singh Ghatwar was found in the jungle of adjoining village-Hahe. Post-mortem examination over the dead body was conducted by Dr. K.P. Srivastava who has found as many as ten injuries caused by sharp cutting weapons such as tangi and farsa. After the investigation, charge-sheet was filed and cognizance for the offence under section 147/148/149/341/323/302 I.P.C was taken and six persons were sent-up for trial. Charges for the offence under section 148/302/149 I.P.C and section 201/34 I.P.C were framed against all six accused persons. During the trial, the prosecution has examined seven witnesses; the doctor who has conducted autopsy is P.W 6 and the informant has been examined as P.W 5. 5. The investigating officer who has conducted the investigation of the case has not been examined by the prosecution. 6. During the trial, the prosecution has examined seven witnesses; the doctor who has conducted autopsy is P.W 6 and the informant has been examined as P.W 5. 5. The investigating officer who has conducted the investigation of the case has not been examined by the prosecution. 6. The defence taken by the accused persons is that the deceased fell from a tree and suffered head injury due to which he has died. They have also taken plea of alibi and examined two witnesses. 7. On the basis of the evidences laid before him, the learned Additional Judicial Commissioner-VII, Ranchi has held that the prosecution has successfully proved the charges against the accused-Achru Lohar under section 302/149 I.P.C and section 201/34 I.P.C. 8. Other five accused persons were acquitted of the criminal charges framed against them. 9. The main reason why the other five accused persons have been acquitted is that the prosecution witnesses have failed to identify them in the court. In the First Information Report, the informant-Adhir Singh (P.W 5) has also stated that he could not identify the other accused persons. 10. Mr. Mukesh Kumar, the learned A.P.P submits that the evidence of P.W 1, P.W 2 and P.W 5 on the point of assault to Bishwanath Singh Ghatwar is consistent and immediately after the assault his dead body was recovered from a nearby jungle and, therefore, conviction of the appellant for murder of Bishwanath Singh Ghatwar is well-founded. 11. In the first place, we intend to record that there is no eye-witness to the actual occurrence. All that the prosecution has been able to establish is that when the informant along with the deceased-Bishwanath Singh Ghatwar reached near a bridge they were surrounded by the appellant and 6-7 unknown persons. None of the prosecution witnesses has claimed that the accused persons have killed Bishwanath Singh Ghatwar near the bridge. The crime weapon was not recovered and obviously it was not sent for any serological report. No inquest report was prepared and how the dead body has been recovered, in particular, first by whom, has not been disclosed by the prosecution. In the ferd-beyan, the informant has claimed that the appellant caught arm of the deceased and other accused persons started assaulting him with “fist and danda”, however, in his deposition in the court he has stated that the appellant has assaulted the deceased-Bishwanath Singh Ghatwar with danda. In the ferd-beyan, the informant has claimed that the appellant caught arm of the deceased and other accused persons started assaulting him with “fist and danda”, however, in his deposition in the court he has stated that the appellant has assaulted the deceased-Bishwanath Singh Ghatwar with danda. P.W 1 goes one step further and alleges that the appellant was holding torch and farsa. The doctor who has conducted autopsy has found ten injuries on the dead body, all sharp cutting. There is evidently serious contradiction in the medical evidence and the ocular evidence led by the prosecution during the trial in S.T No.571 of 1989. 12. The learned counsel for the appellant has contended that the source of identification of the accused persons is unbelievable and the learned Additional Judicial Commissioner has failed to examine the plea of alibi taken by the appellant. 13. We find that it is the prosecution's own case that the appellant was holding a torch and it has not been brought on record that any other person had any other source of illumination. It was a dark night and the time of occurrence was around 10.45 in the night. The appellant is a co-worker with the informant and the witnesses who have been examined by the defence. In the cross-examination of the defence witnesses, nothing has been elicited which would make their statement doubtful. It is a well-settled proposition in criminal jurisprudence that the standard of test applied to the prosecution evidence and the defence evidence must be the same; evidence of both parties should be tested on the same yard stick. We are of the considered view that the appellant is entitled for the benefit of doubt. The other accused persons have been acquitted of the charges framed against them by the learned Additional Judicial Commissioner. However, curiously the appellant has been convicted with the aid of section 149 I.P.C for murder of the deceased-Bishwanath Singh Ghatwar, but for concealing the evidence he has been convicted with the aid of section 34 I.P.C. No reason has been assigned by the learned Additional Judicial Commissioner why the appellant has been convicted under section 302/149 I.P.C, that is, with the aid of section 149 I.P.C and simultaneously under section 201/34 I.P.C, that is, with the aid of section 34 I.P.C. 14. A reading of the judgment of conviction of the appellant in S.T No.571 of 1989 would reflect that the learned Additional Judicial Commissioner has simply extracted a part of the prosecution evidence and recorded the plea raised on behalf of the defence. Thereafter, straightway the learned Additional Judicial Commissioner has arrived at a conclusion that the appellant is guilty for murder of the deceased-Bishwanath Singh Ghatwar. There is no reason written by the learned Additional Judicial Commissioner how the prosecution has been able to establish the charge under section 302/149 I.P.C and section 201/34 I.P.C against the appellant. 15. We have carefully examined the entire record of S.T No.571 of 1989 and considered the rival submissions made on behalf of both the parties. We are of the opinion that the learned Additional Judicial Commissioner has erred in law in holding that the prosecution has been able to establish the charges framed against the appellant. 16. In the above facts and for the reasons indicated hereinabove, the judgment of conviction under section 302/149 I.P.C and section 201/34 I.P.C and the order of sentence, both dated 25.11.1993 are set-aside. The appellant is discharged of the liability of the bail-bonds furnished by him. 17. In the result, Criminal Appeal No.65 of 1994 (R) is allowed. 18. Let the lower-court records be transmitted to the court concerned forthwith.